The situs of the registered trade mark right in South African law considered in the light of parallel importation

Abstract

National trade mark registers exist in most jurisdictions around the world despite the demands of international trade in the global economy', the global economy being reputed to abhor all barriers to trade such as those which national trade mark registrations have created.2 The conflict and tension generated by the existence of national registers and the demands of international trade manifest themselves most acutely in the phenomenon of parallel importation.t The responses to this tension, evidenced in the manner in which the courts have dealt with parallel importation a prompted the present investigation of the situs of the registered trade mark right. The system of separate registrations in each jurisdiction suggests that the right that derives from each registration is limited to the jurisdiction in which registration has occurred, whereas the manner in which parallel importation has been dealt with suggests that there is one international trade mark rights. requirements.ls it is possible for a trade mark to be created in terms of each subsystem using the same symbol because of the semi-independence of the subsystems from each other.l6 The common law does not enforce the registered trade mark right and the TMA does not enforce the common law trade mark right.17 The SA common law and TMA are both parts of the legal system of a single jurisdiction; therefore there has to be a rapprochement between the two.18 Their interaction necessitates a detailed examination of the common law trade mark in order to provide a more holistic understanding of the creation of the registered trade mark right. Creation of a trade mark asIlP is therefore considered in terms of the rules of both subsystems.